Francis v. Marshall

• Decision Date: 02 February 2010
• Docket Number: Civil Action No. 07-240-ART.
• Citation: 684 F. Supp.2d 897
• Parties: Nello James FRANCIS, Plaintiff, v. Robert MARSHALL, et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

684 F.Supp.2d 897

Nello James FRANCIS, Plaintiff, v. Robert MARSHALL, et al., Defendants.

Civil Action No. 07-240-ART.

United States District Court, E.D. Kentucky, Southern Division, Pikeville.

February 2, 2010.

Donald Wayne McFarland, McFarland & Lovely, Salyersville, KY, Garry R. Adams, Clay, Kenealy, Wagner & Adams PLLC, Louisville, KY, for Plaintiff.

Chris J. Gadansky, Robert T. Watson, Landrum & Shouse LLP, Louisville, KY, for Defendants.

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

The defendants filed a motion for summary judgment, R. 21, to which the plaintiff responded, R. 26, and the defendants replied, R. 31. The plaintiff filed a cross-motion for partial summary judgment, R. 27, to which the defendants responded, R. 32, and the plaintiff replied, R. 36. For the reasons provided below, the defendants' motion is granted in part and denied in part, and the plaintiff's cross-motion is denied.

BACKGROUND

The facts of this case are as follows, with the disputes noted:

On March 1, 1999, Floyd County, Kentucky, hired the plaintiff, Nello J. Francis, to be a park worker. See R. 21, Ex. A at 1 ("Marshall Aff."). Technically, a golf course in Allen, Kentucky employed Francis. Id. However, from the middle of 2005 until the last day of his employment on December 31, 2006, Francis actually oversaw a county park in Garrett, Kentucky. Id.; R. 28 at 34 ("Francis Dep."). Francis performed general maintenance at the park such as upgrading and improving concession stands. Francis Dep. at 29-31.

In 2006, the plaintiff's son, James Francis, was running for a state representative seat against Brandon Spencer. R. 21, Ex. B at 1 ("James Francis Aff."). The defendant, Robert Marshall, supported Spencer and Francis supported his son. Id. Before the primary election of 2006, Francis's son spoke with Marshall to ensure that there would be no retaliation for Francis's support of his son. Id. Marshall assured him that Francis's job would not be affected because of the state representative election. Id. The defendants dispute whether Marshall assured Francis's son that Francis would maintain his job under any circumstance. R. 31 at 3. There is evidence that Marshall, at a minimum, campaigned on behalf of Spencer. See R. 26, Ex. 1 ("Ritchie Aff.").

Before taking the office of County Judge Executive, Marshall reviewed all Floyd County positions, including Francis's, to eliminate the positions that were unnecessary as part of a reduction in work force. R. 29 at 79-80 ("Marshall Dep."); Marshall Aff. at 1. Marshall determined that Francis's position would not be re-funded and should be eliminated because it was unnecessary. Marshall Aff. at 2; Marshall Dep. at 79-80. In mid-December 2006, Marshall informed Francis that he would not be re-hired. Francis Dep. at 34-35. On December 31, 2006, Francis's position was not re-funded and was eliminated. Marshall Aff. at 2. Other positions were also eliminated, including those filled with people younger than Francis. Id.

On January 1, 2007, Marshall took the office of County Judge Executive. Marshall Dep. at 79. Pursuant to the Floyd County Fiscal Court's longstanding practice, no Floyd County employee was employed at 12:00 a.m. on January 1, 2007. Id. at 16-17, 19. Thus, the Fiscal Court had to re-hire its employees. Id. at 17. Marshall called a special meeting of the Fiscal Court on January 1, 2007, to re-hire its employees. Id. at 16. He testified that he notified the local newspaper, the Floyd County Times, of the special meeting. Id. at 22. The parties dispute whether anything was printed in the paper. Francis points out that the defendants failed to cite any evidence to show that the special meeting was announced in the newspaper. R. 26 at 3. No members of the general public attended the meeting. Marshall Dep. at 24.

Francis was the only full-time park worker that was not re-hired in Marshall's administration. Id. at 27. Marshall testified that poor work performance was part of the reason that his administration abolished Francis's position. Id. at 79. The administration did not offer Francis a hearing before it eliminated the position. Id. at 38.

On December 5, 2007, Francis filed this action against Marshall, in his individual and official capacities, and the Floyd County Fiscal Court. See R. 1. Francis alleges, under 42 U.S.C. § 1983, that his dismissal was unlawful patronage that violated the First Amendment. See id. He claimed that Marshall and unidentified others violated 42 U.S.C. § 1985 because they conspired to retaliate against Francis for supporting a political adversary of Marshall's. See id. He also asserted state law claims against the defendants for age discrimination, wage and hour violations, and wrongful discharge. See id.

DISCUSSION

In Francis's motion for partial summary judgment, he claims he pled a Fourteenth Amendment due process claim in his complaint. See R. 27. He is incorrect. Francis's complaint only alleges that the defendants violated his First Amendment rights and various state laws. See R. 1. The first time Francis alleged his due process claim was at the summary judgment stage. That is far too late. Once a case has progressed to the summary judgment stage, "the liberal pleading standards under Swierkiewicz and the Federal Rules are inapplicable." Tucker v. Union of Needletrades, Indus. & Textile Employees, 407 F.3d 784, 788 (6th Cir.2005) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004)); id. (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723 (3d ed. Supp.2005) ("A non-moving party plaintiff may not raise a new legal claim for the first time in response to the opposing party's summary judgment motion. At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Rule 15(a).")). Francis failed to amend his complaint in accordance with Fed.R.Civ.P. 15(a) and, therefore, cannot allege a due process claim in a response to the defendants' motion for summary judgment or in a cross-motion for partial summary judgment.

To permit a plaintiff to bring a claim at the summary judgment stage would subject the defendants to unfair surprise. Tucker, 407 F.3d at 788 (citations omitted). Such unfair surprise is apparent here since the defendants' otherwise thorough motion for summary judgment makes no mention of a due process claim. The defendants filed their motion on September 25, 2009, to meet the dispositive motions deadline of September 26, 2009. R. 20. In response, Francis relied on depositions taken on September 30, 2009, roughly three months after the discovery cutoff, to support his due process claim. See R. 28 and 29. This evidence came extremely late in the litigation. Cf. Carter v. Ford Motor Co., 561 F.3d 562, 566 (6th Cir.2009) (stating that where the complaint is not clear the defendant may become aware of a claim during the course of the proceedings (citing Harris v. Bornhorst, 513 F.3d 503, 516 (6th Cir.2008))). Evidence discovered both after the discovery cutoff and after the dispositive motions deadline cannot fairly put the defendants on notice of a due process claim.

Francis cites three sections of the complaint to support his argument that he properly pled a due process claim. But none of those sections put the defendants on notice of a due process claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (stating that notice pleading requires the defendants get notice of what the claim is and the grounds upon which the claim rests)). First, Francis points out that his complaint mentions the Fourteenth Amendment twice. See R. 1 ¶¶ 1, 12. The first reference merely states that the Court has federal question jurisdiction because the case involves the First and Fourteenth Amendments. Id. ¶ 1. That does not put the defendants on notice that Francis is asserting a due process claim. It only informs the defendants that Francis's claims involve the Fourteenth Amendment in some way. The second reference states:

The actions of the Defendant constitute a wrongful and retaliatory discharge of the Plaintiff in violation of his First and Fourteenth Amendment rights under the United States Constitution to the free exercise of political patronage, political association, and freedom of speech.

R. 1 ¶ 12. That reference puts the defendants on notice that: (1) Francis alleges that they violated his First Amendment rights of "free exercise of political patronage, political association, and freedom of speech," and (2) the First Amendment applies to state action via the Fourteenth Amendment. See Perry v. McGinnis, 209 F.3d 597, 603 (6th Cir.2000). But this part of the complaint does not put the defendants on notice that the dismissal was a due process violation since it makes no such allegation. While Francis did not need to use the words due process in his complaint—although it would have been advisable—he needed to put the defendants on notice of such a claim. See Fed. R.Civ.P. 8(a)(2).

In addition, Francis argues that the complaint alleges the grounds upon which his due process claim rests. He points to the following paragraph in the complaint:

On December 31, 2006, the Plaintiff was notified by Defendant Marshall that he was terminated from position due to a "position elimination." This termination of the Plaintiff was clearly pre-textual as he had more seniority than his counterparts, there are no meeting minutes of hearing regarding the dismissal of the Plaintiff, more park rangers were added to Floyd County employment shortly thereafter and even though Plaintiff's position was allegedly eliminated for budgetary reasons, the employment of Defendant County increased by 16 since his dismissal.

R. 1 ¶ 9. But that paragraph relates to Marshall's discrimination...